Shanghai, 19th March. Before H. &. Winkrssox, Esq., Chief Fustice.
PrckWoap & Ca. ¢. THE SHANGHAI Mercury, Lo.
This case came up for decision, and his Honour gave a long and exhaus judgment. The points at issue were:—1. Whether, assuming the statements in the petition are true, the plaintiffs have any remedy at Common Law or Equity Whether under the same assumption cany remedy under the Copyright sumption they have by virtue of the Order in Council of Qud February, 1899, any remedy by civil process?
is further agreed that subject to the ight (if any) of either party to appeal against the decision of the court on the above questions, if any of the questions ix answered. in the affirmative, the suit is to proceed, and if they are answered in the negative the suit is to be dismissed.
In conclusion, his Honour said—The answer then to the first and second questions is that, sseuming the statements in the petition to be true, the plaintiffs are entitled, under the Copyright Acts extended (o British subjects in China by the China and Japan Order in Council 1865, and the Ghina, Japan, Coren Order in Council 1884, to the relief claimed in the The answer to the third question e. The costs of this application will as agreed be costs in the cause.
Shanghai, 19th March.
Before H. 8. Witxrxtox, Esq., N. Moants & Ca. v. Kayo Ewe-cure & Ca, His Lordship delivered judgment in this suit as follow:
This in a special case stated by H. B. 'M's Court at Amoy under Rule 99 of the} obtaining two option of this Court question of law which arose in a suit in which the plaintiff claimed a sum of $744.25, being the value of lottery tickets advanced by the plaintiffs to one Ko San for sale upon 2 written guarantee given by the defen-dots to the plaintiffs for the due payment by the ssid Ko San of the value of any lottery tickets up to $5,000 which might be advanced to him by the plaintiffs for sale. The defendants pleaded that the contract was an illegal contract under the English statutes relating to lotteries, and one that; ought not to be enforced in a British Court and that ples tie following questions have stated by H. Ins Court at! the able of lottery tickets by a British subject in the Treaty Ports of China unlawful? Second—If the sale of lottery tickets as above is unlawful, is a British subject debarcett from suing ina British Court on ® guarantee (copy annexed) nection with such unlawful ante. The following is a copy of the agreement "The Undersigned hereby agrees to become security for Mr. KoSan(_) that he will traly account for the value of all lottery tickets advanced to him for sale by N. Moalle & Ca., Li, to the extent of 35.000 (five thousand dollars), the said tickets being advanced to Mi. Ko Xan on the following terms—commission of S% (eight per cent) elf the retail price of $4. $2, anil 50 cents for whole, half, quarter, and one-eighth tickets to be' allowed, and tickets unsold on condition of th handed to N. Moalle and Ca. noon (12 o'clock) of the day of the drawing to be allowed for at the face value. Th amount for tickets advanced to be paul for on the arrival of liste of winning numbers for the then month.
(Sd.) Kntoo Ewe Curve & Ca.
Witness (Sd) Thos. Harps, Agreed.
N. Moatra & Ca., Lo.
(Sd) E. Q. Coorer.
There is no doubt that the sale of lottery tickets is unlawful in England under the Lottery Acts, and the question then is, Do the Lottery Acts apply to British subjects in China? The question was decided in this Court in the affirmative 4 far then Luw Secretary, 1g a8 Police Mayiatrate, In the case of R. ¢. Belbin (reported the N.-C. Herald and S.C. & C. Gazette vol. 8, p. 90.) where a British subject was charged by the Shunghni Municipal Police with ualuwfully kee} lottery, aot being a lottery authorised by Parliament, where the defendant admitted that he had kept the lottery, but pleaded that be was unaware of any Act of Parliament making lotteries illegal and that he was not aware of any order of H.M.'s Minister in force with respect to lotteries, Mr. Mowat pointed out that lotteries were forbidden by the Act 10 and 11 Will, IT C. 17, and held that no order of ELM.'s Minister was necessary to make the prohibition applicable to British subjects in China.
"His Worship understood Mr. Belbin's defence to be that he considered himself free to gv on till the matter was brought before and adjudicated upon by some competent but he was mistaken in imyginia that " notification from HIM. Minister forbidiling lotteries was necess of the kind was needed, for the that the law of England provid case, and that law (by the effect of section 5 of the Order in Council of 1865) operated here so far as British subjects were concerned The st.tate which was in force at home on the subject, and which the Court felt bound to enforce here, was the 10 and:1 Will. ILL. C17, entitled an Act for the suppressing of Lotteries," and by it all lotteries are declared common and publi: nuisances. That being so, any person charged with holding lotteries was liable to an indictment before a jury, and if convicted be-ame liable to fine or imprizooment, or both, at the discretion of the Judge."
Now, this decision may not be techn cally binding upon me, as Mr. Mowat when he gave itwxs not acting s Chief Justice of the Court. But Tahould in any case require to be clearly couvinead that the decision was wong before overruling it, and seeing that it has now remained' unreversed and unquestioned for twenty-nine yenrs, it woul require very strong reasons indeed to satisfy me that it ought not to be followed.
The grounds upon which I am asked to disregard that case are two, one relating to circumstances existing at the time when the decision was given, but not brought to the notice of the judge, and the other to special circumstances which have since arisen, and which, itis urged, render the decision, if rightly applicable when given, no longer cable now.
The first ground is this, that due regard ras not given to the words, "as fur as citcumstances admit," in the Sth section of the Order in Council of 1865. ay limiting the application of the law of England to this place, and that if the caves bearing on that point' had been brought to the notice of the Judge, and due regard had been given to them, the decision would have been different,' It ix urged that the Act 10 and IL Will. ILL G.'17, referred to in Uunt decision, and the other English Lottery tended to upply to circum: England, and did not fulfil the condition of applicability requirer by the words referred to. I have in the we of Pick woud & Ca, v. The Shanghai Mercury (Limited), gone at considerable length "into the general question of the applicability of Englixh law to British aw jects in China, and it is not necessary th: T should here go over the sume grout again, It is enough to deal shortly with the specific grounds given for the view that the Lottery Acts are not applicable here, Let us look at the Act 10 and 1 Will, TIT, C.17. It says:—
"Whereas acveral evil disposed pereans for divers years passed have set up many mischievous and unlawful games called lot-not only in the cities of London ami ning ter and in the suburbs. thereof but in the most of the nent tow'
and have thereby most unjustly wi fraudulently got to themselves great i om the children and servants of several gentlemen traders and merchants wal from other unwary parsons to the uteer ruin and impoverishment of many families, and tu the reproach of the English laws and vernment, by colour of several patents or grants under the great seal of Bagland for the said lotteries or some of them. which said patents or yranta are against the com: mon good, trade, welfare and peace of his Majesty's dominions; for remedy whereof it enacted, adjudged and declared that all sult lotteries and all other lotteries are common and public nuisances, aad that all grants, patent and li lotteries of any other letten against law.
It is true that the evils sought to be guarded against. were evils arising in England and Wales, and it may be assumed that the legislature in framing the Act did not contemplate its extension beyond England and Wales, But it is not suggested that the Act applies to British subjects in China proprie vigor, but by virtue of the provisions of the Order in Council and under those provisions the intention of the legislature in passing an Act is not the teat—or ut least not necessarily the test. The test is whether it fulfils the condition of applicability prescribed the Order in Council. As for the evils to be guarded exist here, whether in the same degree of it cannot be said that they do not not ix a different matter, Mr. Mowat, indeed, really dealt. with thie objection, although no cases on the subject hud been cited to him.
"His Worship said the illegality of loster-leg was beyond question, and quoted a case tied in 1860 R. v. Crawshaw, 30 L. J. M. C.
Text read from the printed page and cleaned; old type leaves the occasional error.